No other Canadian scandal in recent memory has captured a public mood the way the Jian Ghomeshi story has.
“This case comes at a time when there’s a heightened conversation over an issue,” lawyer David Butt says.
The veteran lawyer says part of the public conversation has been about sexual assaults and whether the system deals adequately with those crimes, and about women who feel poorly served by the justice system.
From the get-go the public was riveted by Ghomeshi’s lengthy Facebook posting on Oct. 26, in which he accused the CBC of firing the syndicated cultural affairs radio host for his sexual behaviour.
Ghomeshi said he engaged in “adventurous forms of sex” that included role-play, dominance and submission, along with “rough sex (forms of BDSM).” But he said the activities with his partners were always consensual.
Furthermore, he said his lawyers at Dentons Canada LLP would be filing a $50-million lawsuit on his behalf against the national broadcaster for breach of confidence and bad faith, and he would also file a grievance through his union to be reinstated.
Given his bombshell revelation and high public profile, the Toronto Star decided it was in the public’s interest to publish the allegations of four women, three of whom said Ghomeshi’s sexual violence against them wasn’t consensual. They said they were punched, bitten and choked to the point of almost passing out.
The fourth woman, who a month later would write in the Guardian that she was a producer on Ghomeshi’s Q show, claimed he sexually harassed her at work, beginning with an incident in which he told her, “I want to hate f— you.”
In a subsequent story, the Star reported that a total of eight women were now accusing Ghomeshi of beating and choking them without their consent, including actress Lucy DeCoutere, who agreed to be named and share her alleged 2003 abuse.
Two women told the Star, recounting separate incidents, that Ghomeshi had introduced them to his stuffed bear called Big Ears Teddy and had turned it around before allegedly slapping or choking them.
After hearing DeCoutere’s “remarkably similar experience,” author and lawyer Reva Seth decided to go public with her allegation in the Huffington Post that one evening in 2002 Ghomehi choked her and violently penetrated her with his fingers.
On the day that story was published, Ghomeshi’s PR firm Navigator and publicist Rock-It Promotions dropped him as a client. And in a Facebook posting, he said he would meet the allegations “directly,” but that he wouldn’t be discussing “this matter” further with the media.
By the end of the first week after the allegations surfaced, Toronto police said they had launched an investigation and were interviewing three women including DeCoutere.
Meanwhile other allegations going back to his days at York University surfaced including unwanted advances he made to a male colleague, Jim Hounslow, who worked together with Ghomeshi at the student federation more than 20 years ago.
The number of allegations against Ghomeshi became hard to keep track of and to illustrate that Huffington Post created a tracker, which by its account numbered 23 as of Nov. 13.
The Ghomeshi allegations of sexual violence hit a nerve with women who began sharing their stories in publications and on social media. The hashtag #BeenRapedNeverReported co-created by the Toronto Star’s Antonia Zerbisias has since been shared millions of times.
Exactly a month after Ghomeshi was fired, Toronto police charged him with four counts of sexual assault and one count of overcoming resistance by choking.
The next chapter in the Jian Ghomeshi story will be played out in court. Neither the Crown nor the defence is willing to comment except that Ghomeshi’s criminal lawyer Marie Henein said he will be pleading not guilty.
Veteran lawyer Butt, who has tried cases for both the Crown and the defence, says it’s unlikely the two parties will settle the case outside the courtroom.
“Generally speaking the settlement or resolution rates as we call it in criminal law are at their lowest for sexual assaults,” he says. “And the reason for that is there’s very little middle ground for sexual assaults.”
He also expects it’ll be a year or two before this case is heard before a jury or trial judge.
In the meantime, here’s what both sides will be doing. Ghomeshi’s lawyer will be entitled to see “all the fruits of the police investigation,” including complainants’ statements, Butt says.
“So the first thing you do as a defence lawyer is you very carefully review that file,” says Butt, who has a 360-degree view of the criminal justice system having practiced law for 13 years as a Crown prosecutor and 13 years as a defence lawyer.
That file will contain statements from complainants, which Henein will have access to, looking at the case’s strengths and weaknesses and “looking to punch holes.” She will also look beyond that file to see what other sources of information she has or can get that will assist in undermining the Crown’s case such as information from Ghomeshi and third parties.
The Crown will be doing the same thing when it gets the police file. It’ll be preparing by looking at the weaknesses and strengths of the case and whether there are any additional investigations police can do to address gaps or problems in the file, Butt says.
“A key thing you will be looking at in a case like this,” is the evidence of the complainants and the accused. And that’s because over time all the independent evidence, physical evidence from the scene, have disappeared, he says.
There are multiple complainants so it’s likely that the issue of what lawyers call “similar act evidence” will come into play in this case.
“The Crown will try to use the big picture to prove the individual [assaults] likely occurred,” Butt says, whereas the defence will try to argue “you can’t use that.”
If the crush of reporters at Ghomeshi’s bail hearing is any indication, this high-profile case of a Canadian celebrity and his predilections for BDSM will be closely followed.
His next court appearance is scheduled for Jan. 8, 2015.